MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 21 August 2001
         DOCKET NUMBER: AR2001057120

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. James E. Vick		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Barr		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that the noncommissioned officer evaluation report (NCOER) for the period August – December 1997 be removed from her records.

APPLICANT STATES: In effect, that she was subject to sexual harassment by her senior rater (SR), Major M___, and all her other troubles began with a sexual comment made by him in August 1997. She, a black female, was very hesitant about filing sexual harassment charges against Major M___, a white male, at the time. She was selected for separation under the Qualitative Management Program (QMP) based upon the contested NCOER. However, on 9 May 2001 the Chief, Army Family Liaison Office, Pentagon told her that the sexual overtone of Major M___’s remarks is cause for a re-look at the QMP action. That individual recommended she request a Department of the Army Inspector General (DAIG) investigation into the conduct of her senior rater.

EVIDENCE OF RECORD: The applicant's military records show:

She enlisted in the U. S. Army Reserve (USAR) on 11 May 1984. She was ordered to active duty in an active guard/reserve (AGR) status in October 1986.

All the applicant’s NCOERs beginning with the report for the period May 1989 – April 1990 show that she received mostly “success” ratings, with a few “excellence” ratings, from her raters and mostly “fully capable” ratings with a few
“among the best” ratings from her SRs. However, her NCOER for the period ending April 1990 shows she received a “needs some improvement” rating in the area of competence with a bullet comment that she scored low on her skill qualification test. Her NCOER for the period ending June 1992 shows that she received “needs some improvement” ratings in the areas of competence, leadership, training, and responsibility and accounting with related negative bullet comments and a “marginal” rating from the SR for her potential for promotion.

On or about 30 October 1997, Major M___ recommended the applicant be referred for a mental health consultation.

The applicant was promoted to Staff Sergeant, E-6 on 1 November 1997.

The contested NCOER is a 5-rated month change of rater report for the period August – December 1997. In Part IV, her rater gave her all “success” ratings. However, the bullet comment in Part IVb was “reluctance to accept some assignments reflects negatively on MOS competency.” The bullet comment in Part IVf was “occasionally allows personal affairs to interfere with mission accomplishment.” In Part Va, Major M___ rated her potential for promotion as “fully capable.” However, all four bullets in Part IVc were negative. He rated her overall performance as “5,” the lowest possible rating. The reviewer prepared a memorandum for record stating that he did not concur with this NCOER in that the rater’s grading of “success” in all areas was not reflective of either his own comments or that of the SR.

On 18 November 1997, the applicant filed an equal opportunity (EO) complaint against Major M___. She contended that Major M___ treated her less favorably than males and Caucasian soldiers. She provided examples including his instructing her not to close her office door while white, male soldiers were not given the same instructions and his claim that she often arrived late to work and left early whereas she was generally on time for work and generally remained at her place of duty until released.

On 8 February 1998, after investigating the applicant’s allegations, the Brigade EO Advisor found her complaint to be unsubstantiated. However, although no evidence could be found to indicate an action of discrimination, Major M___’s lack of tact and intimidating interactive skills and poor management practices were found to lead to a concern of perceived bias and discrimination. Several actions were recommended to be taken to resolve the complaint, including a change of the applicant’s raters.

On 17 March 1998, the applicant filed a Whistleblower complaint with the IG. She contended that not all the EO’s recommendations were complied with. Although her rating officials were changed, Major M___ would not let her in his section on drill weekends because he could not supervise her. She contended that the whole reason she filed an EO complaint was because Major M___ used the “N” word and she heard him. (This was not one of her contentions in her EO complaint.) The results of this IG complaint are not available.

On 3 December 1998, the applicant appealed her NCOER. Her appeal was initially returned without action due to insufficient evidence.

On 7 July 2000, the applicant was notified that she had been selected for a DA imposed bar to reenlistment under the USAR AGR QMP. The contested NCOER was identified as the document used as the basis for the bar to reenlistment. She elected to appeal the bar. On 10 October 2000, the applicant’s brigade-level commander recommended the applicant not be retained on active duty in the AGR program. He noted that neither the appeal nor his personal observation of her performance documented improved performance. He noted that her most recent NCOER for the period ending July 2000 as a derogatory report documenting unsatisfactory job performance. (This report shows that she received “needs some improvement” ratings in the areas of competence, leadership, training, and responsibility and accounting with related negative bullet comments and a “marginal” rating from the SR for her potential for promotion.)
The general court-martial authority concurred with that recommendation. Her appeal was apparently denied.

On 1 November 2000, the Enlisted Special Review Board (ESRB) received the applicant’s revised NCOER appeal. The ESRB contacted the rater and the reviewer. The rater confirmed that he did not write the negative comments contained in Parts IVb and IVf of the contested report. The reviewer recalled conducting a meeting with the rater and SR but neither could agree on a proper assessment of the applicant’s performance. The reviewer stated that he felt the rater was too lenient and the SR too harsh in their assessments of the applicant. The ESRB found that the applicant’s contentions regarding the comments in Parts IVb and IVf were substantiated and directed that they be removed from the NCOER. The ESRB found that her contentions concerning the SR’s rating and comments were unsubstantiated. The ESRB noted that the EO complaint against the SR was found to be unsubstantiated. The ESRB opined that the reviewer’s letter of nonconcurrence substantiated his disagreement with the SR’s assessment of the applicant’s overall performance and potential but did not refute the presumption of regularity outlined by the regulation.

Army Regulation 623-205 establishes the policies and procedures for the NCOER system. Paragraph 4-2 states that an NCO-ER accepted for inclusion in an NCO’s Official Military Personnel File is presumed to be administratively correct, to have been prepared by the properly designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. Paragraph 4-7 of that regulation states that the burden of proof in an NCO-ER appeal rests with the applicant. Accordingly, to justify deletion or amendment of an NCO-ER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The applicant has not shown, and it does not appear to the Board, that the SR’s evaluation represented other than his objective judgment or considered opinion at the time. The applicant’s EO complaint was found to be unsubstantiated. She made an IG complaint but did not provide the results of that complaint. Furthermore, the contested report is representative of at least three other NCOER ratings received by the applicant, two prior to the contested report and one after.

3. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__jev___ __bje___ __wdb___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001057120
SUFFIX
RECON
DATE BOARDED	20010821
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	111.0200.0003
2.
3.
4.
5.
6.